Gurnam Singh vs Joti Singh and another

Chopra, J.—This appeal is directed against a decision of the learned Additional District Judge, Patiala, dismissing the appellant''s suit for possession of one half of a house which had been decreed by Sub-Judge 2nd Class, Patiala. The suit arose out of the following facts:

Mukand Singh and Arjan Singh sons of Dharam Singh and Ghamdoor Singh son of Kahla Singh had sold a house to Joti Singh and Nathi Singh respondents by means of a registered deed dated 19-12-1989 for Rs. 3000. Gurnam Singh son of Mukand Singh, one of the vendors, filed the usual declaratory suit that the sale would not affect his reversionary rights after the death of the vendors. This was decreed by the trial Court and the decree was upheld in appeal. The entire amount of consideration for the sale was held to be without legal necessity. On further appeal by the vendees a ''Division Bench of the Patiala High Court'' ''vide'' its judgment dated 20-2-2001 found that Rs. 40/2/- out of the sale consideration had been proved for necessity and accepted the appeal to that extent. Arjan Singh and Mukand Singh having died Gurnam Singh brought the present suit for possession of half of the house, on payment of Rs. 20/1/-. The claim was denied by the defendants and ''inter alia'' it was pleaded that the plaintiff was not entitled to bring the suit so long as one of the vendors namely Ghamdoor Singh was alive. An issue to that effect was also framed but it was not pressed by the counsel for the defendants before the trial Judge and was consequently decided against them. The other issues which are no longer in dispute were found in favour of the plaintiff and the suit was decreed. That was, however, the only point that was pressed before and found favour with the District Judge. He is of the opinion that the decree of the High Court amounted to changing the sale into a mortgage with the defendants and that the suit was one for redemption of half of the property on payment of half of the mortgage amount. Applying the principles of Section 60 of the Transfer of Property Act that the integrity of a mortgage could not be broken and that no suit for partial redemption was permissible he accepted the appeal and dismissed the plaintiff''s suit. This is plaintiff''s appeal against this decision of the District Judge.

The view taken by the District Judge cannot possibly be supported and Shri Babu Ram, the learned Counsel for the respondent, has frankly conceded that the present suit was not one for redemption of a mortgage. There was no mortgage between the parties that was sought to be redeemed. The decree in the previous suit did not convert the sale into a mortgage, otherwise the plaintiff might claim to redeem the house at any time within 60 years, which is simply inconceivable. Where a sale is held to be partly for necessity it is not converted into a mortgage for the sum proved to have been paid for necessity; the sale is only allowed to stand subject to the proviso that when succession opens out the heirs of the alienor would be entitled to recover the land on payment of the sum found to have been paid for necessity. This is the only interpretation that can be placed on the decree in the declaratory suit. On appeal by the vendees the High Court came to the conclusion that Rs. 40/2/- out of the consideration of Rs. 300/- had been proved for necessity and the decree given by the District Judge was amended to that extent. All that it meant was that the plaintiff was declared to be entitled to get possession of the property on the death of the alienors on payment of the said amount. Section 60 of the Transfer of Property Act or the principles embodied therein have no application to the present suit for the simple reason that there was no mortgage which was sought to be redeemed. There cannot, therefore be any objection to the plaintiff getting possession of a part of the house on payment of a part of the amount that was found for necessity.

Shri Babu Ram supports the decision of the District Judge on the ground that since the sale was one and indivisible in which the share of any individual vendor was not defined, the plaintiff could not claim possession of the house sold till the death of all the alienors. Ghamdoor Singh one of the vendors being still alive it is stressed that a suit for possession would be premature till he was dead. Reliance is placed on a Single Bench decision of the Lahore High Court in AIR 1948 159 (Lahore) The facts of that case were slightly different but the reasoning for arriving at the decision does go very much in favour of the respondent''s contention. Sale by two brothers of the agricultural land was challenged by a son of one of the vendors and he was given a decree declaring that his reversionary rights on the death of the vendors would not be affected. In the suit for possession of the land after the death of the two vendors objection as to limitation on the ground that one of the vendors had died more than six years before the suit was raised by the defendant. The District Judge decreed the suit only with respect to the share of the vendor who had died within six years of the suit and dismissed it with respect to the other. On second appeal by the plaintiff, Mohammad Sharif, J., decreed the suit for the entire property on the ground that the right to sue for possession accrued to the plaintiff on the death of all the vendors. I am not here concerned with the interpretation placed on the terms of the declaratory decree in that case, but I cannot convince myself to agree with the whole of the reasoning employed to arrive at the decision. The learned Judge was of the view that since the sale was indivisible in which the shares of the vendors were not defined a suit for possession of a part of the ancestral property which had been alienated could not be maintained. In the first instance it cannot be said that the shares of the vendors were not known. In the declaratory decree it had been found that the property in the hands of the vendors who were brothers was ancestral which means the property descended to them on the death of their father. The parties were admittedly governed by Customary Law. The decree, under the circumstances, was enough to give the individual share of each of the vendors. In a case of an alienation by more than one alienor the heirs of each of them would on his death, have a right to sue for possession of his individual share in the property alienated. Since the succession opens out as soon as an owner dies the cause of action for a suit for possession under the Customary Law would not remain in abeyance till the death of all the alienors. Even amongst the different, heirs the right to succeed to his estate under the rule of custom is not a singly indivisible right so as to give a right of action for the whole estate, each collateral is entitled to sue only for his own share of the estate.

For all these reasons I do not see any force in the contention of the learned Counsel that the plaintiff was not entitled to bring a suit for possession during the lifetime of Ghamdoor Singh. It is not disputed that the plaintiff is entitled to one half of the house on the death of two of the vendors; he is therefore, entitled to get possession of that share on payment of Rs. 20/1/- to the defendants.

Lastly it is contended that the High Court in the previous suit did not in so many words declare the sale to be ineffective so far as the rights of the plaintiff were concerned. It is argued that the Court in fact held the sale to he valid and only reduced the consideration for the same to Rs. 40/2/-. The contention is simply ridiculous. The District Judge in the case had declared the plaintiff to be entitled to get possession of the land on the death of the vendors without payment of any part of the sale consideration the whole of which had been found to be without necessity.

On the vendee''s appeal the High Court arrived at the conclusion that Rs. 40/2/- out of the sale consideration had been proved for necessity and amended the decree of the District Judge to that extent. It is therefore, wrong to say that the Court had held the sale to be valid or effective as against the reversionary rights of the plaintiff. No other point is pressed by the counsel of the parties.

In the result the decree of the District Judge is set aside and that of the trial Court restored. The appeal stands accepted with costs.

Kesho Ram Passey, J.

I agree with the order proposed.